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Stu Woolman & Henk Botha 163
about the meaning of ‘democracy’ or ‘openness’ or ‘freedom’ in our
basic law — something of a surprise given the success of South Africa’s
transition from fascism to democracy. Having established that our five
basic values may well be incommensurable in some sets of
circumstances and that balancing does little to address such
incommensurability, we end our discussion by suggesting a
methodology for constructing judicial narratives that may be of some
use to courts faced with cases that challenge our ability to
accommodate marginal groups or that require hard choices.
4.1 Shared constitutional interpretation
Our approach to limitations analysis, in particular, and to
constitutional interpretation, generally, suggests that Bill of Rights
litigation, rightly conceived, ought to reflect a dialogue about the
meaning of fundamental rights and the cogency of justifications
offered for their limitation. 25 From this perspective, powers of
judicial review are best understood, not as part of a battle for
ascendancy between courts and legislatures (though they may turn
into that) or a means of frustrating the will of the political majority
but, rather, as a shared project of constitutional interpretation. What
is ‘shared constitutional interpretation’ exactly? In short, shared
constitutional interpretation stands for five basic propositions.
First. It supplants the notion of judicial supremacy with respect to
constitutional interpretation. All branches of government have a
relatively equal stake in giving our basic law content. Second. It draws
attention to a shift in the status of court-driven constitutional
doctrine. While courts retain the power to determine the content of
any given provision, a commitment to shared constitutional
interpretation means that a court’s reading of the constitutional text
is not meant to exhaust all possible readings. To the extent that a
court consciously limits the reach of its holding regarding the meaning
of a given provision, the rest of the judgment should read as an
invitation to the co-ordinate branches or other organs of state to
come up with their own alternative, but ultimately consistent, gloss
on the text. Third. Shared constitutional competence married to a
rather open-ended or provisional understanding of the content of the
basic law is meant to increase the opportunities to see how different
doctrines operate in practice and maintain the space necessary to
make revision of constitutional doctrines possible in light of new
experience and novel demands. In this regard, the Constitutional
25 See Mhlungu (n 4 above) para 129 (Constitutional interpretation takes the form of
‘a principled judicial dialogue, in the first place between members of this Court,
then between our Court and other courts, the legal profession, law schools,
Parliament, and, indirectly, with the public at large.’)